Madras High Court
Vijayamangalam Naidu vs M.Murugesan on 23 August, 2012
S.A.No.691of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 13.04.2022
PRONOUNCING ORDERS ON : 19.04.2022
Coram:
THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH
Second Appeal No.691 of 2014
1.Vijayamangalam Naidu
Periya Vettukarap Pangaligal,
Arulmigu Karuppanar,
Muthayee, Kannimar
Padavaikkari Kovil
by Thiru.Sundaram alias Meenatchi Sundara
Managing Trustee.
2.Manikkam
3.M.Krishnan
4.M.Athiappan
5.M.Ganesan ..Plaintiffs/Appellants/Appellants
.Vs.
1.M.Murugesan
2.K.Sengodan
3.R.A.Ramesh
4.K.Palaniappan
5.V.Ramasamy
6.S.Ramasamy
7.S.Marimuthu
https://www.mhc.tn.gov.in/judis
1 / 22
S.A.No.691of 2014
8.S.Arumugam .. Defendant/Respondents/Respondents
Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against
the Judgment and Decree of the Subordinate Judge, Namakkal in A.S.54/2010 dated
23.08.2012, confirming the judgment and decree of the District Munsiff, Rasipuram, in
O.S.No.9 of 2008 dated 11.08.2010.
For Appellant : Mr.J.Srinivasamohan
For Respondents : Mr.P.Muthukrishnan
Mr.S.Sathish Kumar
for R1 to R6
No Appearance for R7 and R8
JUDGMENT
The plaintiffs are the appellants in this Second Appeal.
2.The plaintiffs filed the suit seeking for the relief of declaration to declare that they are the Managing Trustees, who are in control of the administration of the suit temple under the settlement deed dated 25-8-1947 and for a permanent injunction restraining the defendants from interfering with the administration of the Temple and restraining the defendants from occupying the suit Temple and the building attached to https://www.mhc.tn.gov.in/judis 2 / 22 S.A.No.691of 2014 it. The plaintiffs also claimed for the relief of mandatory injunction to direct the defendants to hand over the keys of the suit Temple and building attached to it.
3.The case of the plaintiffs is that the suit Temple belongs to the Naicker Pangaligal. Originally, it belonged to one Sundaram @ Mennakshi Sundaram who was the Managing Trustee and the plaintiffs 2 to 5 are the family members of the Managing Trust. According to the plaintiffs, the properties were gifted by a settlement deed dated 25-8-1947, marked as exhibit A2. This settlement deed was executed by the grandfather of the plaintiffs, late Kuppusamy Naicker.
4.The further case of the plaintiffs is that the settlement deed provided 17 conditions and separate tasks were assigned to each branch. The first condition was that Kupusamy Naicker will be the first Managing Trustee and the President of the Temple and his line of successors will only be incharge of the management and administration of the Temple. This was properly followed till the demise of the father of the plaintiff in the year 1988. The plaintiffs claimed that after the demise of their father, they continued as the Managing Trustee and President of the Temple as per the settlement deed. There were various duties assigned to the branch which was given the administration and it was strictly followed by them.
5.The further case of the plaintiffs is that the Temple function must be conducted three times in a year for the deities and for that purpose, donations must be collected https://www.mhc.tn.gov.in/judis 3 / 22 S.A.No.691of 2014 from the 121 pangalis. It is stated that the other branches and pangalis were allotted separate tasks like performing poojas and rituals. The settlement deed also provided for the consequence if any of the pangalis does not give the donation.
6.The grievance of the plaintiffs is that, the defendants started interfering with the administration of the Temple and they went to the extent of creating a parallel Trust and also registered the document. They also occupied the building belonging to the Temple and they used it as the Trust Office. They also issued notices to the pangalis, stating that they are going to collect the donations and run the Temple.
7. It is under these circumstances, the suit came to be filed for the relief stated supra.
8.The defendants filed a written statement. They took a stand that the claim made by the plaintiffs is unsustainable and that the Temple and its properties belongs to all the 121 pangalis and no one can claim an exclusive right on the administration of the Temple. They took a further stand that the plaintiffs started claiming absolute right over the suit Temple and this resulted in all the other pangalis coming together and creating a Trust for the welfare of the deities of the Temple. While doing so, it was ensured that all the 121 pangalis will have a right to administer and maintain the Temple and no one can claim any exclusive right over the suit Temple. The defendants claimed that the https://www.mhc.tn.gov.in/judis 4 / 22 S.A.No.691of 2014 registered trust deed had already come into force and the suit Temple is being administered in a proper manner and even the plaintiffs can participate in the administration and maintenance of the suit Temple along with the other pangalis. Under such circumstances, defendants sought for the dismissal of the suit.
9.Both the Courts below on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, concurrently held against the plaintiffs and dismissed the suit. Aggrieved by the same, the plaintiffs have filed this Second Appeal.
10. When the Second Appeal was admitted, the following substantial questions of law were framed by this Court:
a) Where the plaintiff had not claimed for an exclusive right over the temple and was only tracing the rights as assigned by the Settlement Deed marked as Ex.A2, whether both the Courts misdirected themselves in approaching the dispute as if the plaintiff had claimed for an exclusive right over the temple?
b)Whether the Appellate Court failed to frame the points for determination as mandated under Order 41 Rule 31 of C.P.C. ?
https://www.mhc.tn.gov.in/judis 5 / 22 S.A.No.691of 2014
c)Whether the Settlement Deed Ex.A2 created a right in the nature of trust and assigned specific duties to each branch and when there was no dispute with regard to the nature of right created by the Settlement Deed, whether the Appellate Court went wrong in finding that there was no trust and hence, nobody can claim to be a managing trustee?
d)Whether the Courts below were right in holding that the Settlement Deed Ex.A2 does not create hereditary right to the respective branches while assigning them with specific duties?
e)Whether the findings of both the Courts below can be termed as perverse due to improper appreciation of the oral and documentary evidence?
11. This Court heard Mr.J.Srinivasamohan, learned for the appellants and Mr.P.Muthukrishnan, for the respondents. This Court also carefully considered the materials available on record and the findings of both the Courts below.
12. The present case revolves around the interpretation of the settlement deed dated 25-8-1947 marked as exhibit A2. This settlement deed was executed by Kupusamy Naicker. A careful reading of this settlement deed shows that he had purchased the lands and constructed the Temple and had installed the deities. He wanted to dedicate the https://www.mhc.tn.gov.in/judis 6 / 22 S.A.No.691of 2014 entire property for the benefit of the deities. The settlement deed prescribes 17 conditions. For proper appreciation, those 17 conditions are extracted hereunder, since the inter se rights of the parties can be decided only if these conditions are properly understood:
1/ nky; fhl;oa ,lj;jpy; nky; fhl;oa nfhtpYf;fhf nky; fhl;oa tptug;gof;F ek;k g';fhspfs; midth;fsplj;jpYk; nky;fhl;oa ou!;oa[k; khnd$Uk; Kd;epd;W thptN:y; bra;J fl;ol';fis fl;lntzoaJ/ 2/ek;kspy; Kjy;yf;fkpl;l bghpajdf;fhu nk!;jphp Fg;g[rhkp ehaf;fh; Flk;g tfiawhf;fs; trk; rguk;giuahf ek;k g';fhypfs; ,lj;jpy; thp tN:y; bra;a ntz;oaJ mg;go thpg;gzk; tN:y; bra;jhy; mjw;F urPJ mtuhtJ mthplk;/ 3/rnfhjuuhtJ bfhLf;f ntz;oaJ me;j tN:yhd gzj;jpw;F kiwg;go tut[ bryt[ fzf;Ffs; vGjp itj;jpUf;f ntz;oaJ/ ek;k g';fhspfs; mt;tpj fzf;Ffisg; ghh;f;f tpUk;gpdhy; fhl;l ntz;oaJ/ 4/ek;k g';fhspfs; ,lj;jpy; nky;fhl;oa tptug;gof;F tN:ypf;Fk; gzk; iftrk; ,Ug;g[ ,Uf;Fk; gzj;ij ek;kspy; Kjy; ,yf;fkpl;l bghpa jd;ffhu nk!;jphp Fg;g[rhkp ehaf;fh; trk; ,Uf;f ntz;oaJ/ 5/fUg;gzhh; rhjpf;F g{i$ bra;a ntz;oaJ ,uhrpg[uk; gHdp ehaf;fh; Fkhuh; ey;yehaf;fh; FLk;gj;jhh; ahh; ntz;LkhdhYk; mth;fsplk; trk;ghuk;giuapy; bra;a ntz;oaJ/ 6/Kj;jha; fd;dpkhh; bghlitf;fhhp ,e;j RthkpfSf;F g{i$ bra;a ntz;oaJ Fuf;fg[uk; ey;ypehaf;fh; FLk;gj;jhh;fs; tk;rguk;giuahf bra;a ntz;oaJ/ 7/nkw;go Kj;jha; fd;dpkhh; bghlitf;fhhp ,e;j RthkpfSf;F https://www.mhc.tn.gov.in/judis 7 / 22 S.A.No.691of 2014 nghid vLf;f ntz;oaJ/ bfhkuehaf;fh; Fkhuh; rPu';f ehaf;fh; FLk;gj;jjhh;fs; tk;r guk;giuahf vLf;f ntz;oaJ/ 8/fUg;gzhh; Rthkpf;F nghidbgaLf;f ntz;oaJ FUf;fg[uk; ey;yp ehaf;fh; FLk;gj;jjhh;fs; tk;r guk;giuahf vLf;f ntz;oaJ/ 9/uzhg;gphpit ML Fj;j ntz;oaJ bghury;gl;o uhkehaf;fh; Fkhuh; rPu';feha;f;fh; FLk;gj;jjhh;fs; tk;r guk;giuahf Fj;j ntz;oaJ/ 10/jPh;j;jf;Flk; bfhz;L tu ntz;oaJ bghuriygl;o Kj;jheha;f;fh; Fkhuh; gHdp eha;f;fh; FLk;gj;jjhh;fs; tk;r guk;giuahf bfhz;L tu ntz;oaJ/ 11/RthkpfSf;Fr; rk;ke;jg;gl;l Rthkpfisa[k; rhkhd;fisa[k; ikj;j g';fhspfs; Mw;wpypUe;J nky;fhl;oa nfhtpYf;F bfhz;L te;J xg;g[tpf;f ntz;oaJ/ 12/nky;fhl;oa RthkpfSf;F ntz;Ljiyf;fhfahUfpYk; mtuth;fs; ngh; nghl;L Rthkp Myaj;jpy; bfhz;L te;J itj;Jtpl;lhy; mJ RthkpfSf;F jhd; ghj;jpag;gl;lJ/ mjpy; ahUk; vt;tpj ghj;jpaKk; bfhz;lhlf;TlhJ/ 13/nky;fhl;oa Rthkpfis ij khjk; bghUk; bgh';fy; bgUk; bgh';fy; 1 khrp khjk; rptd; uhj;jphp 2) Mo khhk; 18 gjpbdl;L njjp 3 ,e;j K::Zq khj';fspYk; tUc&k; gpujp jtwhky; elj;jp tu ntz;oaJ. Xt;bthU khj';fspYk; elf;f ntz;oa cw;rtj;ij jtwhky; nky;fhl;oa tptug;gof;F elj;jp tuntz;oaJ mjw;F Vw;gl;lth;fs; me;j me;j fhy fhy';fspy;
elj;j ntz;oaJ ij khjk; bgUk; bgh';fYf;F ek;k g';fhspfs; midth;fSk; jyf;fl;L xd;Wf;F 0/8/0 vl;lzh tPjKk; ,nj khjphpahfnt nky;fhl;oa khrp khjk; rptd; uhj;jphpf;Fk; bfhLj;J tuntz;oaJld; Mo khjk; gjpbdl;Lg; gz;oiaff;F jyf;fl;L xd;Wf;F xU U:gha; tPjk; bfhLj;J tu ntz;oaJ/ 14/nfhtpy; tPlhdJ nky;fhl;oa ek;k g';fhspfs; midth;fSf;Fk; https://www.mhc.tn.gov.in/judis 8 / 22 S.A.No.691of 2014 bghJtha; ghj;jpag;gl;;lJ/ 15/nky;fhl;oa tptug;gof;F thp bfhLf;fj; jtwpdhy; mth;fs; nky;fhl;oa Rthkpfspd; ghj;jpaj;ij ,He;Jnghf ntz;oaJ/ 16/ nky;fhl;oa tptug;gof;F bra;a ntz;oa xt;bthU tUc&j;jpYk; me;j me;j khjhkhj';fspy; bra;a[k; Rthkp fhhpa';fis bra;a[k;nghJ xUtnuh my;yJ rpynuh nrh;e;Jf; bfhz;L nkw;go Rthkp fhhpa';fis vt;tpj fhuzj;ijf; bfhz;Lk; epWj;Jk;go brhy;yf;TlhJ mg;go kPwp bra;jhy; mjdhy; kw;wth;fSf;F nehpLk; rfytpj ec&;lj;jpw;Fk; rptpy; fphpkpdy; ,t;tpj epge;jidfSf;F fl;Lg;gl;ltuhth;/ 17/khK:y; gof;F xt;bthU tUc&j;jpYk; me;j me;j fhy fhy';fspy; RthkpfSf;F mtsths; bra;a ntz;oa fhhpa';fis bra;a jtwpdhy; me;j fhy';fspy; nky;fhl;oa bfhkuehaf;fh; Flk;gj;jhh;fs; guk;giuahf g{i$ bra;a ntz;oaJ/
13. At the outset, this Court has to see if the above settlement deed had created a Trust in favour of the deities of the Temple. It is now well settled that the nomenclature of the document does not decide the nature of the document and it has to be determined only by properly understanding the contents of the document.
14. Section 6 of the Indian Trusts Act, 1882 talks about how a Trust is created. For proper appreciation, the said provision is extracted hereunder:
6. Creation of Trust.- Subject to the provisions of Section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or act-(a) an intention on his part to create thereby a trust, (b) the purposes https://www.mhc.tn.gov.in/judis 9 / 22 S.A.No.691of 2014 of the trust, (c) the beneficiary, and (d) the trust property and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust property to the trustee.
15. A careful reading of the above provision shows that the following acts will constitute creation of a Trust:
a. There must be a clear intention of the person who executes the document to create a Trust. A Trust is an obligation annexed to the ownership of the property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another or of another and the owner.
b. The purposes of the Trust must be clearly spelt out with sufficient precision.
c. The beneficiary of the Trust must also be spelt out with reasonable precision and;
d. The document must also spell out the Trust property that is dedicated to the Trust.
16. The Hon’ble Supreme Court had an occasion to deal with the interpretation of Section 6 of the Indian Trusts Acts in Motilal Chhadami Lal Jain .v. Commissioner of Income Tax, Delhi reported in 1991 Supp (1) SCC Page 229 . The relevant portion of the judgement is extracted hereunder:
https://www.mhc.tn.gov.in/judis 10 / 22 S.A.No.691of 2014
22. We are of the opinion that the view of the High Court proceeds on an unduly narrow construction of the deeds of 1947 and 1960. We have pointed out that, under the deed of 1947, the karta of the assessee family is the sole trustee to execute the objects of the Trust. It appears to have been overlooked that while a registered conveyance to the trustees by the owner of immovable property is necessary where the trustees are persons other than the author, this requirement does not arise where the author of the trust is to be the sole trustee. While a trust is not complete until the trust property is vested in trustees for the benefit of the cestui que trust, this can be done by the settlor, where he is himself the trustee, by a declaration of trust, using language which, taken in connection with his acts, shows a clear intention on his part to divest himself of all beneficial interest in it and to exercise dominion and control over it exclusively in the character of a trustee. Section 6 of the Indian Trusts Act, makes this clear beyond all doubt. In the present case there is a deed which makes clear the unequivocal intention to utilise the income from the properties in the manner set out in the deed of trust. It is in the context of the above legal position that one has to understand the references in the Trust Deed to the income of the properties belonging to the Trust. Indeed, this is made clear by the conduct of the party all through and the language of the second deed. The assessee's full ownership of, and unqualified right to enjoy, the properties gets restricted and qualified on the execution of such a Trust Deed by the various conditions set out and imposed by the Trust Deed. The execution of the Trust Deed creates an overriding title in the beneficiaries thereunder (viz. the various cross sections of https://www.mhc.tn.gov.in/judis 11 / 22 S.A.No.691of 2014 the public covered by it) to require that the income from the properties, which are made the subject matter of the trust, be utilised in the manner set out therein and no other. Indeed, after the execution of the Trust Deed, the properties are no longer held by the assessee as the absolute owner thereof; they are held by the assessee under trust and legal obligation to apply the income exclusively for charitable purposes, thus attracting the provisions for exemption contained in the Act.
17. A careful reading of the above ratio enunciated by the Hon’ble Supreme Court shows that while a Trust is not complete until the trust property is vested in trustees for the benefit of the cestui que trust, this can be done by the settlor, where he is himself the trustee, by a declaration of trust, using language which, taken in connection with his acts, shows a clear intention on his part to divest himself of all beneficial interest in it and to exercise dominion and control over it exclusively in the character of a trustee. Section 6 of the Indian Trusts Act, makes this clear beyond all doubt.
18. Having understood the ingredients and the conditions to be satisfied for the creation of the Trust, this Court will now proceed to apply the same to the settlement deed marked as exhibit A2. It is clear from this document that the author of this document viz., Kuppusamy Mastry was originally owning the land and the property and he dedicated it in favour of the deity of the Temple and also hands over possession. He also expresses a clear intention on his part to create a Trust for the benefit of the deities https://www.mhc.tn.gov.in/judis 12 / 22 S.A.No.691of 2014 of the Temple. This document also spells out the purposes of the Trust and assigns specific duties. The Trust deed itself imposes 17 conditions to be followed while running the Trust. Thus, there is no doubt in the mind of this Court that exhibit A2 indeed crated a Trust in favour of the deities and the author of the document was the first Managing Trustee of the Trust. The third substantial question of law is answered accordingly.
19. A careful reading of the document marked as exhibit A2 shows that there is a specific mention about three branches of pangalis. The first branch is the branch of Kumpusamy Naicker. The second branch is that of Chinnanna Naicker and the third branch is the Nalla Naicker branch. Insofar as the first branch is concerned, the document very clearly states that this branch and its descendants will be in administration of the Temple. They were given the right to collect the varippanam from the pangalis and give them receipt for the same. They are also liable to maintain proper accounts for the receipt and expenses incurred. They have to furnish the account as and when demanded by the pangalis.
20. Insofar as the second and third branches are concerned, they and their descendants were assigned the task of performing poojas in the Temple and conducting various rituals in the Temple. This was supposed to be done thrice a year without fail. It is also made clear in the document that the property and Temple will remain common for all the pangalis. If any pangali fails to made a varippanam or fails to perform the duty, they will be deprived of their right. It has been made very clear in the document https://www.mhc.tn.gov.in/judis 13 / 22 S.A.No.691of 2014 that the duties assigned to the pangalis will be followed hereditarily and the same will apply to the right created in terms of the administration of the Temple, performing of pooja etc.
21. The cause of action for filing the suit had arisen since the plaintiffs who were falling in the branch of Kupusamy Naicker complained that the other pangalis were interfering with the administration of the Temple and had created another Trust and were attempting to run the Office in the building belonging to the Temple.
22.On a careful reading of the oral evidence of the witnesses, it is seen that all the parties accept the fact that the suit Temple belongs to all the 121 families of the pangalis. It is also admitted that the superstructure was put up only by collecting the varippanam from the pangalis. This set up was going on smoothly till the lifetime of the father of the plaintiff. In other words, from 1947 to 1988 there seems to be no problem in understanding the scope of the document marked as exhibit A2 and the specific duties / tasks that were assigned to each branch. The problem seems to have started in the year 2006 when a parallel Trust was started by the defendant and they took away the keys of the building belonging to the Temple. It can also be seen from evidence that the performance of poojas had stooped from the year 1994 onwards.
23. The trial Court while framing the issues, specifically framed an issue to determine as to whether the plaintiffs are entitled for a declaration to declare that they https://www.mhc.tn.gov.in/judis 14 / 22 S.A.No.691of 2014 alone can administer the suit Temple. While dealing with this issue, the trial Court seems to have approached the dispute as if, the plaintiffs are claiming exclusive right over the suit Temple. Having dealt with this issue in this angle, the trial Court has proceeded to render a finding that the suit Temple belongs to the entire 121 pangali families. The trial Court also relies upon the evidence of PW1 in this regard. The trial Court also has given a finding as if, the Temple was not in existence when the exhibit A2 document was executed. This finding is apparently wrong since there is a specific recital about the existence of the Temple. The trial Court also took into consideration the fact that the defendants proceeded to take over the Temple from 29-10-2007 and formed a Trust and also issued notices to the other pangalis to recover varippanam
24.The trial Court after considering all the above circumstances, has rendered a finding that the plaintiffs do not have the right to administer the suit Temple exclusively. There are two fundamental mistakes that were committed by the trial Court while rendering this finding. The first mistake was that the trial Court went on a presumption that the plaintiffs are claiming for exclusive right over the suit Temple. The second mistake committed by the trial Court was to have misread the Clauses contained under exhibit A2 document and as a result, arrived at wrong conclusions. The trial Court has given a finding as if, the descendants of Kupusamy Naciker do not have the right to administer the Temple hereditarily. This finding is contrary to condition no. 2 contained in exhibit A2. The trial Court also has given a finding as if, the varippanam was collected from all the 121 pangali families and the buildings were put up and therefore, the https://www.mhc.tn.gov.in/judis 15 / 22 S.A.No.691of 2014 plaintiff’s do not have the exclusive right to administer the suit Temple. This finding is also contrary to condition no. 1 in exhibit A2 document. In the considered view of this Court, the findings of the trial Court suffers from perversity and it runs contrary to exhibit A2 document and the oral evidence available on record.
25. When the plaintiffs filed the appeal, they took the following specific grounds, as under:
6. The learned district munsif ought to have consider the evidence of the cross examination of the DW1.
15. The lower court is failed to consider that the 7th respondent has filed a contempt E.P.7/2009 against the 1st appellant/1st Plaintiff and 5th respondent/5th defendant. V.Ramasami alleging that they are disobeying the permanent injunction decree obtained by the 7th respondent. While the facts are so how is it possible that the 7 and 8 the respondent are colluded to support the appellants. This question was asked by the plaintiff's counsel to the Dw2 during the cross examination he deposed that in page 3 of the deposition “ vd; kPJk; 1k; thjp kPJk; 7k; gpujpthjp xU ePjpkd;w mtkjpg;g[ epiwntw;WkD jhf;fy;
bra;J mJ R.E.P.7/2009 epYitapy; ,Ue;JtUtjhf brhy;YtJ rhpjhd; vd;W DW2 xg;g[f;bfhz;Ls;shh; mt;thW ,Uf;Fk;nghJ vg;go 7 kw;Wk; 8 gpujpthjpfs; thjpf;F cld; kiwthf ,Ue;j bray;gl;Ls;sh;fs; vd;W fPHik ePjpkd;wk; mDkhdpf;fyhk; mJ ,aw;ifapd; ePjpf;Fg; g[uk;ghdJ/ The lower court ought to have consider this point and came to the correct conclusion and ought to have decreed the suit as prayed for.
16. The lower court admitted the document Ex.A-2. The defendants https://www.mhc.tn.gov.in/judis 16 / 22 S.A.No.691of 2014 also admitted the settlement deed Ex.A2 in both written statement and oral evidence but wantonly denying the recitals of the settlement deed. It is against the nature of justice. Further the Ex.A2 settlement was acted upon for the past 63 years and the terms and conditions were followed by the plaintiffs and the defendants and the said Kuppusami naicker's hereditary i.e., the plaintiffs family members were administering the temple and collecting the varippanam. The lower court also admitted the above contents but negatively dismissed the suit against the nature of justice.
26. These grounds were taken apart from the other grounds questioning the findings of the lower Appellate Court.
27.The first vital mistake that was committed by the lower Appellate Court was not to have framed the points for determination mandated under Order 41 Rule 31 of CPC. This was done in spite of the plaintiffs raising specific grounds in the appeal questioning the findings of the trial Court.
28. The lower Appellate Court began its judgement with a wrong finding. The lower Appellate Court has found that there is no trust in existence and hence, the family members of Kumpusmay Naicker cannot claim themselves to be the Managing Trustees. There was no dispute on both the sides about the existence of the Trust and there was https://www.mhc.tn.gov.in/judis 17 / 22 S.A.No.691of 2014 no issue in this regard before the trial Court. This Court on interpretation of exhibit A2 settlement deed has already held that it created a trust in favour of the deities of the Temple. In view of the same, the finding of the lower Appellate Court as if, there is no trust suffers from perversity.
29. The lower Appellate Court also fell in error by understanding the dispute as if, the plaintiffs are claiming an exclusive right over the suit Temple. The mistake that was committed by the trial Court in this regard was repeated by the lower Appellate Court also. This is in spite of the fact that the plaintiffs were never calming for the exclusive right over the suit Temple and what was actually claimed by the plaintiffs was the right to administer and maintain the suit Temple. Since there was a fundamental mistake in determining the very right that was claimed by the plaintiffs, the consequential findings also suffered from perversity. The lower Appellate Court even went to the extent of saying that even Kupusamy Naicker does not have the right to call himself the Managing Trustee. This finding is completely contrary to the recitals of exhibit A2 document. Unfortunately, both the Courts did not even take into consideration the fact that the plaintiffs produced the accounts from the year 1982 to 2006 for collecting the varippanam from the pangalis and spending the same for the administration of the suit Temple. The lower Appellate Court has merely repeated the findings of the trial Court and did not independently consider the grounds raised by the appellants.
30. The lower Appellate Court went one step ahead and gave a finding that the Trust was started for the first time only in the year 2008 through exhibit B1 document. https://www.mhc.tn.gov.in/judis 18 / 22 S.A.No.691of 2014 This finding is completely contrary to the evidence available on record and the defendants who were tracing their right from exhibit A2 document can never be permitted to form an independent Trust for the suit Temple when it has already been created under exhibit A2 document.
31. In view of the above discussion, this Court holds that both the Courts below misdirected themselves in approaching the dispute as if, the plaintiffs had claimed an exclusive right over the suit Temple. What was claimed by the plaintiffs was the right to administer the suit Temple as Managing Trustees and this right was flowing in their favour under exhibit A2 document. The first substantial question of law is answered accordingly.
32. The judgement of the lower Appellate Court, apart from being liable to be interfered on the ground of perverse findings, is also liable to be interfered for violation of the mandate under Order 41 Rule 31 of CPC., by not framing the points for consideration. The second substantial question of law is answered accordingly.
33. Both the courts below concurrently fell in error in holding that exhibit A2 document does not create hereditary right to the respective branches by assigning them with specific duties. This finding is contrary to the recitals found under exhibit A2 document. That apart, the findings rendered by both the Courts below suffers from perversity since it is contrary to the oral and documentary evidence available on record. https://www.mhc.tn.gov.in/judis 19 / 22 S.A.No.691of 2014 The fourth and fifth substantial questions of law are answered accordingly.
34. In the result, the judgement and decree of both the Courts below are liable to be interfered by this Court and accordingly, the same is set aside. Consequently, the suit filed by the appellants is decreed as prayed for. It is made clear that each branch of the pangali families will have the right and duty as prescribed under exhibit A2 document. No one will have the exclusive right over the suit Temple and all the 121 pangali families will have a right to the suit Temple. Accordingly, the second appeal is allowed. Considering the facts and circumstances of the case, there shall be no order as to costs.
19.04.2022 KP Internet: Yes Index: Yes https://www.mhc.tn.gov.in/judis 20 / 22 S.A.No.691of 2014 To
1.Subordinate Judge, Namakkal.
2.District Munsiff, Rasipuram.
3.The Section Officer V.R.Section,High Court, Madras.
https://www.mhc.tn.gov.in/judis 21 / 22 S.A.No.691of 2014 N.ANAND VENKATESH,J.
KP Pre-Delivery Judgment in Second Appeal No.691 of 2014 19.04.2022 https://www.mhc.tn.gov.in/judis 22 / 22